What Would You Change?

It’s morning in America, as it is every morning, and despite the glow many of us are feeling due to the outcome of yesterday’s elections, the systemic problems, many of which were recognized by the authors of the Constitution and the Federalist Papers, remain. Wouldn’t it be nice if instead of focusing solely on trying to stimulate the economy and balance our budget, some immediate legislative attention was given to reflecting on and cleaning up the political system itself? Let me throw out a few issues for us to discuss here that were raised or alluded to on our podcast episode:

1. The Electoral College. Just like the appointment of Senators by state governments, the Electoral College is a remnant of the framers’ elitism: a specific part of the scheme was that electors could overrule the voters if they chose foolishly. Now that we’ve abandoned this line of thought, is there any legitimate states’-rights reason to keep it?

2. Partisan gerrymandering. The Constitution gives state legislatures the power to figure out their own Congressional districts, and the result is that whichever party sets the boundaries in effect gets to put its thumb on the scale of its party’s Congressional representation, not to mention consolidating their hold on the state legislature itself. While we do have some legal mechanism for federal intervention in cases where the redistricting is overtly racially motivated, this is hardly an efficient way of making legislatures more representative. Unless, again, that’s not the goal, because we want to give states more power.

3. Partisan control of voting apparatus and procedures. Even if #1 and #2 have legitimate states’ rights arguments behind them, this whole business of partisan state officials trying to game the system to minimize votes for the other party is unquestionably sordid. On the other hand, state governments, again, are voted in democratically, so does that legitimate the actions of state legislatures and officials in determining how easy it is to vote, how transparent the process is, what the ballot looks like, etc.? If state officials don’t perform these tasks, what hypothetically less partisan group should?

4. Minimizing the impact of money on elections. With unlimited organizational (mostly corporate) donations for superPACs and the like, there’s certainly the “appearance of corruption” at the very least in our political system, but what mechanisms do we now have to address this, and does it really even need addressing? If we address #1 and #2, and with the continued dispersion of media, it’s possible that even enormous amounts of campaign cash won’t be sufficient to effectively shove a candidate’s message down the throats of enough of the electorate to have a substantial effect. Local officials, of course, will always be cheaper to buy off, but I don’t know enough about how that works to say whether, say, national transparency and ethics standards are something that would help here.

5. Encourage third parties. Personally, I like the idea of a coalition government. I’ve argued that we already have one, to some degree, but it’s still not the ideal solution to the problem of factionalism. The seeming advantage of the current system, and the test by which alternatives need to be gauged is its ability to reduce the likelihood of a Hitler coming to power. If you have 10 candidates, and 9 reasonable ones split the vote, then some nutjob might get a plurality. Instant-runoff voting is one alternative, but could still result in the Hitler scenario if it’s not structured to specifically prevent this. Addressing #2 would likely help here.

6. Fix Congressional rules. The houses of Congress set their own procedural rules. When this results, as in the current Senate approach to the filibuster, should it not be part of the separation of powers for some other entity (even just a Congressionally-created non-partisan committee) to be able to have some ability to address the issue?

Have I missed anything? These are the sorts of issues that should in themselves be non-partisan. Since any change in the status quo will result in some redistribution of power, then addressing them either requires that legislators let the common good overwhelm their political self-interest (though the nice thing here is that they can brag about their fairness and so maybe make up some of the political ground lost by the change itself) or that the political system already have enough separation of powers to prevent the need for a self-interested body to exert the will to reform itself. This encapsulates the basic problem the framers were trying to cope with: if people are basically selfish and power-grabbing, and so incapable of really acting objectively toward the common good, then separating powers will not in itself add virtue into the process. If all the separated powers conspire to perpetuate corruption out of political self-interest (and note that one of these “powers” could itself be the majority of the electorate, voting to keep minorities down), then no structural features of our political system can address this. The best we can do is to erect as firm walls between them as possible so that checks and balances, coupled with what virtue there is, will sort things out eventually. Luckily, we as individuals and our elected officials really are capable from time to time of voting in favor of fairness, and less idealistically, I can point out that de-escalation of a destructive conflict really is quite often in both sides’ interest so long as the measure is bilateral.

Comments

I like all the ideas presented in this post and I loved the Federalist Papers podcast. One major thing I learned is that this country created a temporary equilibrium by making itself so impervious to systematic change.

Something that needs is attention is the current representation Americans actually have. There are only 535 representatives in congress. This is absurd, this allows representatives be easily bought out by special interests and makes the balance of power between the elites and the people unbalanced. I heard one idea was one representatives for every 25-35 k people, at most that would give at about 9000 representatives in congress. Ahh! Redundancy and robustness.

R Zauel

November 7, 2012

You make many excellent suggestions and cogent arguments.

Other suggestions that are often part of these lists include moving voting day to the weekend, move voting to the internet, require everyone to vote, voting puts everyone into a jackpot lottery, and doing away with representative democracy – moving towards full democracy through some internet based app.

I’m sympathetic to the call of Third parties or even more. Our current system assumes that geography is the criteria we should use to divide up representation, this is arbitrary we could use any criteria such as astrological sign, nation of origin, or size of orifice. A criteria that is self chosen, such as affinity to environmental causes, alma mater, religious beliefs may be a closer actual representation of the voters true identity.

As a criticism I recall your podcast on Machiavelli’s The Prince. There was a good discussion that a society’s elite classes need some “extra” buy-in to the political system. While I personally find this abhorrent, I do think it is accurate to say that the elite’s will always find a way to circumvent whatever system is in place, or replace it with their own. They need some outlet for their accumulated power, and our current system certainly supplies this. This is an uglier side of the human condition, but one that must be accounted for.

gravyboat

November 7, 2012

On “Fresh Air” today, Terry Gross asked political analyst Norm Ornstein of the American Enterprise Institute a similar question.

1. He would ask for mandatory presence at the polls as in Australia. You don’t have to vote, but you have to go to your polling place on Election Day or be fined. He said this eliminates from the campaigns any kind of activity or effort to affect turnout, which perverts campaigns.

2. He would ask for changes in the filibuster rules so that the burden of prolonging the delay would fall on the minority instead of the majority, that mere “intent to filibuster” would not be sufficient to stop a bill going forward, and a third thing I can’t remember.

If I could change anything? (We talking ANYthing . Muhhahhahah?) OK, realistic political goals. Your suggestions are excellent Mr. Linsenmayer but after these last few years I’ve never felt this cynical. Anyway, topping my list is the need for publicly financed elections. Politicians work for the people that fund their campaigns.

anon

November 9, 2012

Linsenmayer/Alwan 2016? Alwan/Linsenmayer? 2020 maybe? Is it just a bad idea all around?

While we still have a two-party system (assuming something along the lines of #5 ever happens), I’d at least like to have two reasonable, legitimate alternatives to vote for, which are both more or less based in some degree on reality. There’s no especially “unbiased” way to put this; but I think it’s fair to say the Republican party has been doing a very bad job at that for a long time. (At least on every issue I can think of at the moment.)

When I’m voting (or just thinking about their merits of others’ arguments), I want it to be a hard choice, because then they’re both at least arguably good somehow, for someone, somewhere. That’s not what’s happening. I’m very liberal and I want the Democrats to have strong opposition, because there’s always room for improvement, isn’t there? The problem is that I don’t expect them to make much tangible progress on their own, if all they need to do is beat a party who’s completely lost the plot and making some of the worst arguments imaginable for a ridiculous platform. I expect those people (Dems in this case) to do the bare minimum in that situation, and that’s never going to be good enough.

To be fair, I don’t think this just boils down to pessimism or expecting everyone to be lazy (though that plays a part I guess). There are real issues that aren’t getting tackled and real people who are suffering; but instead of merely having to deal with that (as if that wasn’t enough), we also have to try to contain the sideshow on the other side of the aisle as much as we can. I mean, it’s not simply that their policies by themselves are incredibly wrong and/or evil (though I think they are). It’s also that the way it plays out simply isn’t constructive for anyone, on all sides in a debate or even in the media. It’s not conducive to a functional democratic society to have one side (or both) so far removed from a basic understanding of how the world works, along with basic human decency.

I just don’t know what anyone can do about it. Is losing elections enough to teach some kind of lesson? I don’t know.

Anh-vu Doan

November 9, 2012

All of these suggestions are reasonable and intelligent, but would require such an overhaul of the system, and so much drastic change, that none of the ruling parties would ever attempt them. This is why you don’t even hear about “instant runoff voting”- it’s not even taught in schools. The current system benefits the parties, they would never ever vote to reduce their own power. And the current system is so ingrained into the psyche of Americans, and the American public is so apathetic, that these eminently reasonable proposals have no chance whatsoever of ever being implemented.

Johnny Schmidt

Well, my question in this regard re. the Federalist Papers, is: is it just a matter of political will that we can’t achieve these goals, or is the current structure of our Constitutional system actually keeping us from doing so? These two possibilities are not unrelated, as the Constitution dictates structures that in turn incite or inhibit political motivations, e.g. having state governments who want to hold onto their power creates forces against certain federal actions, yet having Congress control commerce and federal program funding (highway, educational, etc.) gives them a carrot/stick with which to motivate states.

Daniel Horne

November 12, 2012

I agree with Anh-vu, and would argue that it’s political will / power which is the primary issue here. Constitutional structures are impotent to curtail power on their own. Constitutional structures derive not so much from an obvious reading of the Constitution’s own text. Rather, they derive from how the US Supreme Court (a political stakeholder) interprets the Constitution during any inevitable challenge to attempts to implement your proposed goals.

The text of the Constitution alone can’t dictate constitutional structures. Instead, a political culture has evolved over 200+ years, where 9 people on the Supreme Court get to determine what the Constitution even says. That includes determining the constitutional limits of state and federal power, and even the limits of the Supreme Court’s jurisdiction to hear challenges!

It’s trivially true that the Supreme Court is itself a kind of “constitutional structure.” But it’s apparent today that the Supreme Court’s rulings begin from a function of political will, and only afterward resort back to the text of the Constitution, as a post-hoc rationale. That’s why its so easy to predict how the Supreme Court will “split” on a particular issue nowadays.

Just to apply this to a “real world” example: Mark, you mentioned Congress’ power to “control” interstate commerce. But Congress’ power to do this results not from the Constitution as such, but rather from the Supreme Court’s 1942 Wickard v. Filburn decision. And that was a clearly politically-motivated decision at the time.

I guess one could say the very structure/text of the Constitution puts some non-negotiable limits on what we can do. (We can’t, say, elect an emperor-for-life.) But on the other hand, the presidential powers are far more “imperial” now than they were 100 years ago, particularly with respect to war powers. And that has more to do with how the Supreme Court has interpreted those powers, and Congress’ own unwillingness to challenge some of those powers.

So, the power currently wielded by the President, the Congress, or even the Supreme Court does not obviously arise from the Constitution’s text, or any abstract structure. Even the Supreme Court’s own power to act as referee resulted more from a kind of political “power grab” that happened in 1803 with Marbury v. Madison, rather than from the way its own authority was contemplated on paper.

Joe Tab

November 12, 2012

“That’s why its so easy to predict how the Supreme Court will “split” on a particular issue nowadays.”

How easy is it to predict the Court?

More than half of the Court’s decisions are actually not 5-4. And the Affordable Care Act ruling was far from predictable.

Joe Tab

November 12, 2012

“But Congress’ power to do this results not from the Constitution as such, but rather from the Supreme Court’s 1942 Wickard v. Filburn decision. And that was a clearly politically-motivated decision at the time.”

Daniel Horne

November 12, 2012

Hi Joe,

I’m not sure how to answer your first question. How easy is it to predict the Court? On a scale of 1 to Easy? I’d say it’s pretty easy on any of the important stuff that matters. I’m not alone in saying this. But let me be more clear. It’s not hard to see how, say, Justice Thomas or Justice Scalia are going to rule on most of the decisions which are of, let’s say, political interest. If I were to ask you to name the “conservative” justices and the “liberal” justices, you wouldn’t have a hard time placing certain justices in certain boxes. I’d say at least 6 of them can be pretty easily pegged.

Whether or not more than half of the Supreme Court’s rulings are 5-4 or not isn’t germane to my point, which is that the Court acts as a political stakeholder in these kinds of major decisions. And they do so in a way not contemplated at the time of the drafting of the Constitution. What does support my point, though, is that these sorts of 5-4 splits have been on the rise for the past half century. And the trend is toward more 5-4 splits, not less. Just see the graph attached to this article:

And those splits (whether 5-4 or 6-3, etc.), when they happen, tend to occur on predictable political lines. (In other words, the 5-4 and 6-3 splits tend to be the same groupings of people. There isn’t a random distribution on who is in the 5 and who is in the 4, etc.)

Much of the Affordable Health Care Act decision was, in fact, predictable, in the sense that it wasn’t hard to know how *most* of the justices were going to vote. The only surprise comes in wondering who would cast the swing vote, and which direction the swing would take. But note that Roberts’ “surprise” vote does not appear to have come from disinterested legal analysis, so much as a decision to avoid having the court continue to look so politically divided on what should be jurisprudential issues:

Daniel Horne

November 12, 2012

Re: Wickard v. Filburn. Yes, sorry, I should have been more clear in what I meant: Congress’ power to regulate interstate commerce under the Commerce Clause, in the way we currently understand that power, results from Filburn and its progeny.

Yes, there were Supreme Court decisions on the Commerce Clause before Filburn. And before those Court decisions, someone actually wrote the Commerce Clause into the Constitution! But the sweeping regulatory powers of the federal government that began with FDR (i.e., “statism”) are most proximately tied to the Filburn decision. The point being that these powers did not obviously arise from the text of the Commerce Clause, but rather arose from a court decision, and a political culture, that evolved over the early 20th century. This is pointed out in many — if not most — Constitutional Law texts, but here’s one article on point:

Daniel Horne

November 12, 2012

Joe, judging by your last comment, I think we agree!

My original comment was to support Anh-vu’s point, which is that political stakeholders are more likely to block any attempts at meaningful reform, and that political actors, rather than constitutional structures, are the proximate cause of the problem. That’s because our constitutional structures, as we currently understand them, often result from less-than-obvious readings of the Constitution’s text via judicial decisions from politically motivated actors. I’m not sure if it matters whether that’s inevitably the case, or simply happens to be the case most of the time.

Mike F

November 13, 2012

I think the Federalists who wrote and supported the constitution at the time expected the Supreme Court to continue to modify the meaning of the constitutional powers over time as circumstances changed. That’s why they created a Supreme Court. They also expected the legislature and the states to modify it which is why they created an amendment process. They knew that they could not anticipate future circumstances and that the text would need to be interpreted, applied and modified as necessary by future actors.

The criticisms of the established order in this and other threads seems to be that the balance of power among the three branches and between the two parties via procedural rules that prevent the minority party from being ignored prevents any progress. Balance seems to be the problem most complained about. The framers of the constitution were trying to create an entity that was powerful enough to deal with the great European powers of the time without the wheels coming completely off, but hopefully no stronger than that. They wanted the “self” in self-government to remain at the most local level possible.

Over time, however, I think power tends to concentrate rather than diffuse. Madison’s hope that the federal government would find the concerns within the states and localities too tedious, too involved, too militantly self-interested to want to get involved with seems misplaced after 200+ years. Over time, each sequential crisis is going to tend to move more and more power to the most powerful actor. As the power concentrates, those who arrogate it build a system to protect the incumbents and gather more power. The process seems like it will continue until finally some abuse of power becomes more than the general population can stand and it all comes down in some ugly manner.

Joe Tab

November 13, 2012

Anh-Vu: “The current system benefits the parties, they would never ever vote to reduce their own power. And the current system is so ingrained into the psyche of Americans, and the American public is so apathetic, that these eminently reasonable proposals have no chance whatsoever of ever being implemented.”

Isn’t this always true, though? The status quo at any moment in time contains winners and losers. Our system obviously does change, but change does not always occur at predictable moments. And, I will concede, the structure of our system does, more often than not, make systemic change difficult, especially if we are relying on a Constitutional Amendment to bring about this change.

So, we can confidently say that any changes that do not require a Constitutional Amendment are more likely than changes that do. The Electoral College could be reformed or eliminated by a Const. amendment. It could also be reformed on a state by state basis if individual state legislatures decided to allocate their electoral votes proportionally, as Maine and Nebraska do.

Regarding gerrymandering, a number of states (not sure how many. need to check) have reformed or attempted to reform this process, relying instead on non partisan committees to, to the extent that it is possible, remove politics from the equation.It would be interesting to see the impact that this change has had on the states that have enacted reforms.

About The Partially Examined Life

The Partially Examined Life is a philosophy podcast by some guys who were at one point set on doing philosophy for a living but then thought better of it. Each episode, we pick a text and chat about it with some balance between insight and flippancy. You don’t have to know any philosophy, or even to have read the text we’re talking about to (mostly) follow and (hopefully) enjoy the discussion

Become a PEL Citizen!

As a PEL Citizen, you’ll have access to a private social community of philosophers, thinkers, and other partial examiners where you can join or initiate discussion groups dedicated to particular readings, participate in lively forums, arrange online meet-ups for impromptu seminars, and more. PEL Citizens also have free access to podcast transcripts, guided readings, episode guides, PEL music, and other citizen-exclusive material. Click here to join.